interim denied in dv

Excerpt: it is not an absolute vested right in favour of the wife to claim maintenance in all the conditions and circumstances. The courts have found that if the claim of maintenance is not based upon destitution due to circumstances beyond control of the claimant, then such claim does not lie.

Delhi District Court
Smt. Aarti vs Shardendu Sharma on 21 August, 2014
Author: Sh. Pulastya Pramachala
                                                          Criminal Appeal No. 21/2014


Criminal Appeal No. 21/2014
Unique I.D. No. : 02402R0295572013

In the matter of :-

Smt. Aarti                                                        . . . Appellant
W/o. Sh. Shardendu Sharma
D/o Sh. B.S. Walia
R/o 68, Subhash Khand
Giri Nagar, Kalkaji, New Delhi

1.      Shardendu Sharma                                    . . . Respondents

S/o Sh. Ishwar Chand

2. Ishwar Chand S/o Not Known

3. Smt. Shanti Sharma W/o Sh. Ishwar Chand All R/o C-2/288, Yamuna Vihar Delhi – 110 053 Date of Institution : 12.09.2013 Date of receiving the case in this court : 03.02.2014 Date of reserving order : 07.08.2014 Date of pronouncement : 21.08.2014 Decision : Dismissed JUDGMENT IN APPEAL

1. This appeal has been filed U/s 29 of The Protection of Women from Domestic Violence Act, 2005, challenging the order dated 22/08/13 passed by Ld. MM in case No. V-09/13 titled as Smt. Aarti Sharma v Shardendu Sharma & Ors. Vide impugned order the trial court Criminal Appeal No. 21/2014 rejected the claim of appellant for grant of interim relief.

2. Briefly stated the relevant facts of the case are that the appellant filed an application U/s 12 of the Act, alleging that she was married to respondent No. 1 on 23/11/10. Prior to this marriage both of them had one child each from their previous wedlock. After marriage, appellant was residing alongwith respondent No. 1 and his parents. The respondents were not satisfied with the dowry and therefore they had been harassing and beating the appellant for more dowry. Respondent No. 1 had been also causing cruelty and domestic violence upon appellant. Since 07/08/11, respondent No. 1 arranged a rented accommodation for the appellant and himself but she was tortured there also. Since August 2011, appellant was deserted by respondent No. 1 as he had started visiting his previous wife and staying with her. Respondent No. 1 also stopped paying rent of this premises, though he has a man of means and had been doing job of Software Engineer. He had been earning more than Rs. One lac per month. Appellant was in need of at lest Rs. 50,000/- per month to maintain herself and her minor child.

3. Respondent contested the application of the appellant before the trial court and alleged that the appellant did not stay with the parents of respondent No. 1. At the time of marriage she was working as Manager Operation with an export house and was getting salary of Rs. 1,10,000/- per month. Appellant is a skilled interior decorator. However, she had been very arrogant and showing loose temperament due to which there had been dispute between both the parties. Appellant filed false cases against him and she did not require any maintenance as she herself was capable to maintain herself. She deserted respondent since July 2011 and had been residing with her parents. Respondent relied  upon the affidavit filed by appellant before the trial court along with her rejoinder, wherein she has shown her educational qualification as 9th pass and her past occupation as Sales Girl in a showroom. Respondent submitted that the appellant came up with false declaration regarding her educational qualifications as well as past occupation. He referred to the advertisement given by appellant on website as well as email sent by appellant to the respondent for the purpose of this marriage, wherein she had stated to have completed Bachelor of Arts and she also stated that she was working as Manager. Even in the certificate of marriage, appellant was shown to be a Manager Operation.

4. The trial court while rejecting the application of appellant for interim relief observed that petitioner had come to the court asking for certain reliefs under the Domestic Violence Act and she had admitted that she had told lie about educational qualifications and job on, while searching alliance for. The trial court further observed that such fact went against her because the court cannot prima facie believe upon her allegations against the respondent because of her past conduct and the veracity of the allegations required to be tested during evidence.

5. Before this court, it was argued on behalf of the appellant that appellant cannot be punished for her past conduct and trial court did not consider the case on merits. It was also argued that the appellant was not given any prior notice of the document petaining to before putting the same before Ld. MM and therefore appellant was not given sufficient opportunity to respond properly to this document. It was also argued that the appellant was not working presently, therefore, she is entitled for interim maintenance.

6. On the other hand, counsel for respondent submitted that the Criminal Appeal No.  provisions for maintenance are meant for those, who are not capable to maintain themselves. These provisions are not meant for those, who can maintain themselves. He further submitted that the documents produced before trial court was a document pertaining to appellant and it was merely produced by the respondent in order to show the veracity of her claim. He further submitted that the appellant deliberately did not file statement of her bank account and she did not approach the trial court with clean hands, therefore, there is no infirmity in the impugned order. Ld. Counsel referred to case law cited as Smt. Mamta Jaiswal v. Rajesh Jaiswal, II (2000) DMC 170. In rebuttal counsel for appellant argued that in the case of Smt. Mamta Jaiswal v. Rajesh Jaiswal, Mamta was a qualified Doctor i.e MBBS who had left job and therefore, ratio of that case is not applicable to this case.

7. I have given due consideration to the rival contentions and the record of this case. The scope of interference in revisional jurisdiction is limited to those instances wherein the court finds that there had been no compliance with the provisions of law or the decision is grossly erroneous or the material evidence of the parties was not considered or the judicial discretion was exercised arbitrarily or perversely. In the light of aforesaid parameters, if I analyse the impugned order and the record of this case, then I find that it is well apparent that appellant had taken contradictory stand in respect of her job and educational qualifications in the past and at the time of negotiation for marriage. The appellant has taken a stand that she had lied in the past about her educational qualifications and her occupation. Such conduct of the appellant could not enthuse sufficient confidence in the allegations made by her against the respondent, due to which the trial court observed  that the veracity of her allegations required to be tested with the evidence and prima facie appellant had not approached the court with clean hands, therefore, she was not entitled for any interim relief. The interim relief, if any, is granted by the court on the basis of certain presumptions arising out of the material placed by both the parties. There cannot be any doubt that the claimant has to approach the court with clean hands, so that a prima facie case is found in her favour. When the trial court is unable to rely upon the contentions of the claimant, due to certain facts which are borne out of the record of the case, then no fault can be found in the order for rejection of the interim relief. What has to be seen by this court is that whether the trial court exercised its discretion arbitrarily or perversely. In the present case, I find that the trial court did not exercise its discretion in favour of the appellant because of volatile stands taken by appellant, which raised a sense of insecurity vis-a- vis her allegations. Therefore, it cannot be said that the trial court has acted arbitrarily.

In Smt. Mamta Jaiswal v. Rajesh Jaiswal, II (2000) DMC 170, it was held that :-

“How such a lady can remain without service? It really puts a big question which is to be answered by Mamta Jaiswal with sufficient, cogent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and , therefore, she is unable to support herself. A lady, who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendent lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons, Criminal Appeal No. 21/2014 who would be sitting idle waiting for a ‘dole’ to be awarded by her husband, who has got a grievance against her and who has gone to the Court for seeking a relief against her.

The case may be vice versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a ‘dole’ to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, at least, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversary who happens to be a spouse, once dear but far away after an emerging litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That cannot be treated to be aim, goal of Section 24. It is indirectly against healthiness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient efforts are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned income by toiling working Criminal Appeal No. 21/2014 hours.

In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarreling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendent lite alimony and extra expenditure has to be discouraged”.

In Damanpreet Kaur v. Indermeet Juneja & Anr., 2013 [1] JCC 306, it was held that :-

“The learned ASJ has rightly declined the interim monetary relief to the petitioner by holding that she was well educated lady earning Rs.50,000/- per month and had chosen not to work of her own will, though had the capacity to work and find a suitable job for herself.

The learned ASJ in the impugned order has rightly observed that the question whether the petitioner-wife was forced to resign or had resigned herself is a question to be considered during trial and also the question whether the reasons given by her for resigning from her job were satisfactory or not.”

1. The aforesaid case laws show that it is not an absolute vested right in favour of the wife to claim maintenance in all the conditions and circumstances. The courts have found that if the claim of maintenance is not based upon destitution due to circumstances beyond control of the claimant, then such claim does not lie. Therefore, it cannot be said that the appellant would have been Criminal Appeal No. 21/2014 entitled for maintenance under all circumstances. Since the veracity of the allegations made by her as well as her competence to maintain herself requires to be tested with evidence, I do not find any illegality in the order passed by trial court to reject the claim for interim relief. Hence, the appeal is dismissed. File of appeal be consigned to record room, as per rules.

Announced in the open court (Pulastya Pramachala) today i.e 21.08.2014 Additional Sessions Judge Shahdara, Karkardooma Court, Delhi

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